[Federal Register: April 15, 2005 (Volume 70, Number 72)]
[Rules and Regulations]
[Page 20017-20034]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap05-8]
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Part III
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
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49 CFR Parts 171 and 174
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage; Final Rule
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171 and 174
[Docket No. PHMSA-98-4952 (HM-223)]
RIN 2137-AC68
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule; response to appeals.
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SUMMARY: On October 30, 2003, the Research and Special Programs
Administration, predecessor agency to PHMSA, published a final rule to
clarify the applicability of the Hazardous Materials Regulations to
functions and activities related to the safe and secure transportation
of hazardous materials in commerce, including loading, unloading, and
storage operations. In response to appeals submitted by persons
affected by the final rule, this final rule amends certain regulations
and makes editorial corrections.
DATES: This final rule is effective June 1, 2005.
FOR FURTHER INFORMATION CONTACT: Susan Gorsky (202) 366-8553, Office of
Hazardous Materials Standards, Pipeline and Hazardous Materials Safety
Administration; or Donna O'Berry (202) 366-4400, Office of the Chief
Counsel, Pipeline and Hazardous Materials Safety Administration.
SUPPLEMENTARY INFORMATION:
I. Background
On October 30, 2003, the Research and Special Programs
Administration (RSPA), the predecessor agency to the Pipeline and
Hazardous Materials Safety Administration (PHMSA), published a final
rule to clarify the applicability of the Hazardous Materials
Regulations (HMR; 49 CFR Parts 171-180) to specific functions and
activities, including hazardous materials loading and unloading
operations and storage of hazardous materials during transportation (68
FR 61906). As discussed more fully in the NPRM issued under this docket
(June 14, 2001; 66 FR 32430), the purpose of the rulemaking was to
address uncertainty in the regulated community and among Federal,
state, and local agencies with hazardous materials safety
responsibilities concerning whether and to what extent the HMR apply to
particular activities and operations related to the transportation of
hazardous materials in commerce. In addition, the rulemaking was
intended to address uncertainty concerning the extent to which state
and local agencies may regulate hazardous materials safety,
particularly at facilities where the distinctions among pre-
transportation, transportation, and non-transportation operations are
not clearly articulated.
Clarifying the applicability of the HMR helps to eliminate
uncertainty on the part of the regulated public, thereby facilitating
compliance and enhancing hazardous materials safety and security.
Clarifying the applicability of the HMR also has the beneficial effect
of reducing or eliminating confusion concerning regulations promulgated
by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Environmental Protection Agency (EPA), and Occupational Safety and
Health Administration (OSHA) that apply to materials that are also
covered by the HMR. To the extent that DOT does not regulate in a
particular area, ATF and OSHA are free to regulate to the full extent
of their regulatory authority. However, where DOT does regulate in a
particular area, ATF and OSHA may have limited authority to regulate in
the same area. Moreover, facilities at which functions are performed in
accordance with the HMR may also be subject to applicable standards and
regulations issued by EPA to implement statutorily authorized programs.
In addition, clarifying the applicability of the HMR helps states,
local governments, and tribal governments to determine areas where they
may regulate without being subject to preemption under Federal
hazardous materials transportation law.
Federal hazardous materials transportation law (Federal hazmat
law), codified at 49 U.S.C. 5101 et seq., authorizes the Secretary of
Transportation to establish regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce. Further, Federal hazmat law authorizes the
Secretary to apply the regulations to persons who: (1) Transport
hazardous materials in commerce; (2) cause hazardous materials to be
transported in commerce; or (3) manufacture, mark, maintain,
recondition, repair, or test a packaging or container (or component
thereof) that is represented, marked, certified, or sold as qualified
for use in the transportation of hazardous materials in commerce. 49
U.S.C. 5103(b)(1)(A). The law authorizes the Secretary to prescribe
regulations governing any safety aspect of the transportation of
hazardous materials in commerce that the Secretary considers
appropriate. 49 U.S.C. 5103(b)(1)(B). Federal hazmat law defines
``commerce'' to mean trade or transportation in the jurisdiction of the
United States; between a place in a state and a place outside of the
state; or that affects trade or transportation between a place in a
state and a place outside of the state. 49 U.S.C. 5102(1). The law
defines ``transportation'' to mean ``the movement of property and
loading, unloading, or storage incidental to the movement.'' 49 U.S.C.
5102(12). The statute does not define with specificity the particular
activities that fall within the terms ``loading incidental to
movement,'' ``unloading incidental to movement,'' or ``storage
incidental to movement'' used in the statutory definition of
``transportation.''
It is clear that Federal hazmat law directs the Secretary of
Transportation to address the safety and security of hazardous
materials transportation, that is, the actual movement of hazardous
materials in commerce and the activities related to that movement that
are performed by persons who transport hazardous materials in commerce.
Federal hazmat law also recognizes the critical safety impact of
activities performed in advance of transportation by persons who cause
the transportation of hazardous materials in commerce or by persons who
manufacture and maintain containers that are represented or sold as
qualified for use for such transportation.
In conformance with Federal hazmat law, the HMR currently impose
regulatory requirements on persons who: (1) Perform functions in
advance of transportation to prepare hazardous materials for
transportation; (2) perform transportation (i.e., movement and
incidental loading, unloading, and storage) functions; or (3)
manufacture or maintain containers that are represented or sold as
qualified for use for transportation of hazardous materials in
commerce. Functions performed in advance to prepare hazardous materials
for transportation--now called ``pre-transportation functions''--
include determining the hazard class of a material, preparing a
shipping paper, providing emergency response information, selecting an
appropriate packaging, filling a packaging, marking and labeling a
package, and placarding a transport vehicle. ``Transportation
functions'' include the movement of a hazardous material by rail car,
motor vehicle, aircraft, or vessel and certain aspects of loading,
unloading, and storage operations that are ``incidental'' to such
movement. Under the HMR, training requirements apply to persons
[[Page 20019]]
who perform pre-transportation and transportation functions and to
persons who manufacture or maintain packagings certified or sold as
qualified for use in transportation in commerce.
We have issued a number of interpretations, inconsistency rulings,
and preemption determinations in response to requests from the public
for clarification concerning the meaning of ``transportation in
commerce'' and whether particular activities are covered by that term
and, therefore, are subject to regulation under the HMR. Loading,
unloading, and storage were areas of particular confusion and concern.
Although the interpretations and administrative determinations we have
issued are publicly available, the regulated industry, government
agencies, and non-Federal governments had not been consistently aware
of their existence and availability. Further, some of the
interpretations and decisions we have issued needed to be revised in
light of changes in the Secretary of Transportation's and other Federal
agencies' statutory authority. In the October 30, 2003 final rule, we
consolidated, clarified, and revised, where necessary, these
interpretations and administrative decisions and made them part of the
HMR.
The final rule amended the HMR to incorporate the following new
definitions and provisions:
We defined a new term--``pre-transportation function''--to
mean a function performed by any person that is required to assure the
safe transportation of a hazardous material in commerce. When performed
by shipper personnel, loading of packaged or containerized hazardous
material onto a transport vehicle, aircraft, or vessel and filling a
bulk packaging with hazardous material in the absence of a carrier for
the purpose of transporting it is a pre-transportation function as that
term was defined in the October 30, 2003 final rule. Pre-transportation
functions must be performed in accordance with requirements in the HMR.
We defined ``transportation'' to mean the movement of
property and loading, unloading, or storage incidental to the movement.
This definition is consistent with the definition of ``transportation''
in Federal hazmat law. Transportation in commerce begins when a carrier
takes physical possession of a hazardous material for the purpose of
transporting it and continues until delivery of the package to its
consignee or destination as evidenced by the shipping documentation
under which the hazardous material is moving, such as shipping papers,
bills of lading, freight orders, or similar documentation.
We defined ``movement'' to mean the physical transfer of a
hazardous material from one geographic location to another by rail car,
aircraft, motor vehicle, or vessel.
We defined ``loading incidental to movement'' to mean the
loading by carrier personnel or in the presence of carrier personnel of
packaged or containerized hazardous material onto a transport vehicle,
aircraft, or vessel for the purpose of transporting it. For a bulk
packaging, we defined ``loading incidental to movement'' to mean the
filling of the packaging with a hazardous material by carrier personnel
or in the presence of carrier personnel for the purpose of transporting
it. Loading incidental to movement is regulated under the HMR.
We defined ``unloading incidental to movement'' to mean
the removal of a packaged or containerized hazardous material from a
transport vehicle, aircraft, or vessel or the emptying of a hazardous
material from a bulk packaging after a hazardous material has been
delivered to a consignee and prior to the delivering carrier's
departure from the consignee facility or premises. Unloading incidental
to movement is subject to regulation under the HMR. Unloading by a
consignee after the delivering carrier has departed the facility is not
unloading incidental to movement and is not regulated under the HMR.
We defined ``storage incidental to movement'' to mean
storage by any person of a transport vehicle, freight container, or
package containing a hazardous material between the time that a carrier
takes physical possession of the hazardous material for the purpose of
transporting it until the package containing the hazardous material is
physically delivered to the destination indicated on a shipping
document. However, in the case of railroad shipments, even if a
shipment has been delivered to the destination shown on the shipping
document, if the track is under the control of a railroad carrier or
track is used for purposes other than moving cars shipped to or from
the lessee, storage on the track is storage incidental to movement. We
revised the definition of ``private track or private siding'' to make
this clear. Storage at a shipper facility prior to a carrier exercising
control over or taking possession of the hazardous material or storage
at a consignee facility after a carrier has delivered the hazardous
material is not storage incidental to movement and is not regulated
under the HMR.
We amended Sec. 171.1 of the HMR to list regulated and
non-regulated functions. Regulated functions include: (1) Activities
related to the design, manufacture, and qualification of packagings
represented as qualified for use in the transportation of hazardous
materials; (2) pre-transportation functions; and (3) transportation
functions (movement of a hazardous material and loading, unloading, and
storage incidental to the movement). Non-regulated functions include:
(1) Rail and motor vehicle movements of a hazardous material solely
within a contiguous facility where public access is restricted; (2)
transportation of a hazardous material in a transport vehicle or
conveyance operated by a Federal, state, or local government employee
solely for government purposes; (3) transportation of a hazardous
material by an individual for non-commercial purposes in a private
motor vehicle; and (4) any matter subject to U.S. postal laws and
regulations.
We amended Sec. 171.1 of the HMR to indicate that
facilities at which functions are performed in accordance with the HMR
may be subject to applicable standards and regulations of other Federal
agencies or to applicable state or local government laws and
regulations (except to the extent that such non-Federal requirements
may be preempted under Federal hazmat law). Federal hazmat law does not
preempt other Federal statutes nor does it preempt regulations issued
by other Federal agencies to implement statutorily authorized programs.
The final rule was intended to clarify the applicability of the HMR to
specific functions and activities. It is important to note that
facilities at which pre-transportation or transportation functions are
performed must comply with OSHA and state or local regulations
applicable to physical structures--for example, noise and air quality
control standards, emergency preparedness, fire codes, and local zoning
requirements. Facilities may also have to comply with applicable state
and local regulations for hazardous materials handling and storage
operations. Facilities at which pre-transportation or transportation
functions are performed may also be subject to EPA and OSHA
regulations. For example, facilities may be subject to EPA's risk
management; community right-to-know; hazardous waste tracking and
disposal; and spill prevention, control and countermeasure
requirements, and OSHA's process safety management and emergency
[[Page 20020]]
preparedness requirements. Similarly, facilities at which pre-
transportation functions are performed may also be subject to ATF
regulations concerning the handling of explosives. In particular, the
October 30, 2003 final rule clarified that the exception in 40 U.S.C.
845(a)(1), which excepts from ATF regulation ``any aspect of the
transportation of explosive materials * * * which are regulated by the
United States Department of Transportation'', does not apply in
situations where facility personnel perform pre-transportation
functions with respect to preparing explosives for transportation.
II. Appeals of the Final Rule
We received 14 appeals of the final rule from Ag Processing Inc.
(AGP); Akzo Nobel (Akzo); Archer Daniels Midland Company (Archer
Daniels); the Association of American Railroads (AAR); the Dangerous
Goods Advisory Council (DGAC); the Dow Chemical Company (Dow); DuPont;
Eastman Chemical Company (Eastman); the Institute of Makers of
Explosives (IME); Norfolk Southern Corporation (Norfolk Southern); the
Spa and Pool Chemical Manufacturers' Association (SPCMA); the Sulphur
Institute; the Utility Solid Waste Activities Group (USWAG); and
Vermont Railway, Inc. (Vermont Railway).
Appellants raised a number of issues related to the consistency of
the final rule with Federal hazardous materials transportation law;
state and local regulation of hazardous materials facilities; the
relationship of the HMR to regulations promulgated by OSHA, EPA, and
ATF; the definitions adopted in the final rule for ``unloading
incidental to movement,'' ``transloading,'' and ``storage incidental to
movement;'' and the consistency of the HM-223 final rule with security
regulations adopted in a final rule issued under Docket No. HM-232. A
number of appellants indicated an intention to file additional
information to supplement their appeals. To date, however, we have
received no supplemental information.
The October 30, 2003 final rule was to become effective on October
1, 2004. On May 28, 2004, we published a document delaying the
effective date of the final rule until January 1, 2005 (69 FR 30588).
On December 8, 2004, we published a document further delaying the
effective date until June 1, 2005 (69 FR 70902). Delaying the effective
date provided us with sufficient time to fully address the issues
raised by the appellants and to coordinate the appeals document fully
with the other Federal agencies that assisted us in developing the HM-
223 final rule.
Specific issues raised by the appellants are addressed in detail
below.
III. Appeals Granted
A. Transloading
The October 30, 2003 final rule defined a new term--
``transloading.'' Transloading was defined as the transfer of a
hazardous material at an intermodal transfer facility from one bulk
packaging to another for purposes of continuing the movement of the
hazardous material in commerce. In the October 30, 2003 final rule,
transloading is identified as both a pre-transportation and a
transportation function. A number of appellants expressed concern that
the final rule's treatment of ``transloading'' was inconsistent and
could lead to confusion as to whether storage of hazardous materials at
a transloading facility is considered storage incidental to movement
and subject to HMR requirements. ``HM-223 is inconsistent in its
treatment of transloading * * * [PHMSA should] clarify transloading as
a transportation function. The distinction between transportation and
pre-transportation functions is particularly important with respect to
storage issues since storage incidental to transportation is regulated
by [PHMSA].'' (Akzo) Another appellant notes that ``designating
transloading as a pre-transportation function would be inconsistent
with [PHMSA]'s approach to other intermodal facilities.
* * * The similarities between transloading facilities and other
intermodal facilities are apparent. In both cases, the facilities
typically are carrier owned but operated by contractors or licensees
pursuant to agreements with railroads. In both cases, the materials
being transported are in the midst of the transportation process, with
origin and destination points at different locations.'' (AAR) One
appellant suggests that we add to the definition of ``storage
incidental to movement'' an indication that ``storage incidental to
movement includes storage of transport vehicles and packages at
transloading facilities.'' (IME)
We agree with the appellants that storage of hazardous materials at
transloading facilities is storage incidental to movement and subject
to regulations applicable to such storage under the HMR. As one
appellant notes, in 1995 and 2001, we found that Federal hazardous
materials transportation law preempts state requirements prohibiting
transloading operations in New York and Missouri (December 6, 1995, 60
FR 62527; and July 6, 2001, 66 FR 37089). An explicit determination in
the HMR that storage at transloading facilities is considered storage
incidental to movement for purposes of the HMR is, therefore,
consistent with previously published administrative determinations on
the issue.
Appellants also ask us to consider revising the definition of
``transloading'' to cover transloading operations that take place at
facilities other than intermodal transfer facilities. ``[PHMSA should]
remove the words `at an intermodal facility' from its definition of
transloading. Transloading does occur at consignee facilities. * * * It
is safer and more efficient to perform this transloading at a plant
site than to transport these packages to an intermodal facility.''
(Akzo Nobel) We agree that the location at which transloading occurs
should not dictate whether the operation is regulated as a
transportation function and are modifying the definition in this final
rule.
Therefore, the Akzo, AAR, DuPont, IME, and Norfolk Southern appeals
related to the definition of transloading as a transportation function
are granted. In this final rule, we are amending the following
provisions of the October 30, 2003 final rule:
1. In Sec. 171.1, we are deleting paragraph (b)(4), which defined
``transloading'' as a pre-transportation function. We agree with
appellants that transloading is a transportation function.
2. In Sec. 171.1, we are revising paragraph (c)(4) to indicate
that ``storage incidental to movement'' includes storage at the
destination indicated on a shipping document if the original shipping
document includes information that the shipment is a through-shipment
to an identified final destination. For example, a shipping paper
prepared by the person offering a hazardous material for transportation
in commerce may show the shipment destination as a transloading
facility; provided that the shipping paper or other documentation
includes information that the shipment is a through-shipment and
identifies the final destination or destinations of the hazardous
material, storage at the facility is ``storage incidental to movement''
and subject to regulation under the HMR. Note that such storage must be
of the hazardous material in its original packaging (i.e., the rail
tank car) or its transloaded packaging (i.e., a cargo tank motor
vehicle) in order to be considered ``storage incidental to movement.''
Note also that storage of a hazardous material after delivery to its
final destination is not ``storage
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incidental to movement'' and not subject to regulation under the HMR.
3. In Sec. 171.8, we are revising the definition of ``pre-
transportation function'' to remove transloading operations. We are
also revising the definition of ``storage incidental to movement'' to
include storage of packaged hazardous materials at intermediate
destinations provided the shipping documentation indicates that the
shipment is a through-shipment and includes the final destination or
destinations of the hazardous material.
4. In Sec. 171.8, we are revising the definition of
``transloading'' by removing the phrase ``at an intermodal transfer
facility'' to clarify that transloading is regulated under the HMR
irrespective of the location at which the operation occurs. We are also
clarifying in the revised definition that transloading when performed
by any person is regulated under the HMR.
Concerning the definition of ``transloading,'' as indicated above,
the October 30, 2003 final rule defined ``transloading'' to mean the
transfer of a hazardous material from one bulk packaging to another for
the purpose of continuing the movement of the hazardous material in
commerce. Appellants suggest that ``[PHMSA should] expand coverage of
transloading from bulk-to-bulk to include also non-bulk-to-bulk and
vice versa. There are times when the transfer from bulk to non-bulk or
vice versa occurs during the logic proposed in HM-223.'' We agree that
there may be situations when a hazardous material is transferred
directly from a non-bulk to a bulk packaging or vice versa for the
purpose of continuing the movement of the hazardous material in
commerce. If it can be demonstrated that the shipment is a through
shipment to an identified final destination, then such operations meet
the definition of ``transloading'' and are subject to regulation under
the HMR. Note that, as indicated above, a shipping paper or other
document created at the time the shipment originates must indicate that
the shipment is a through shipment to a known final destination. We are
revising the definition of ``transloading'' to include transfers of
hazardous materials from bulk to non-bulk packagings and from non-bulk
to bulk packagings.
B. Unloading Incidental to Movement
The October 30, 2003 final rule defines ``unloading incidental to
movement'' of a hazardous material to mean removing a packaged or
containerized hazardous material from a transport vehicle, aircraft, or
vessel, or, for a bulk packaging, emptying a hazardous material from
the bulk packaging after the hazardous material has been delivered to
the consignee and prior to the delivering carrier's departure from the
consignee's facility or premises. Dow suggests that we include a
definition for ``facility'' to clarify this provision.
We agree that the definition in the final rule should be clarified.
There will be instances where a carrier has delivered a hazardous
material to the consignee, and the carrier's responsibility for the
hazardous material ceases even though the carrier may not have left the
consignee's facility. For example, the carrier may drop a trailer
loaded with hazardous material at one location in the facility and go
to another location in the same facility to pick up a new trailer for
transportation. In this case, the carrier's responsibility for the
delivered shipment has ended even though the carrier has not departed
from the facility. Therefore, the Dow appeal related to the definition
of ``unloading incidental to movement'' adopted in the October 30, 2003
final rule is granted. In this final rule, we are modifying the
definition for ``unloading incidental to movement'' to indicate that
unloading incidental to movement occurs after the hazardous material
has been delivered to the consignee's facility when the unloading
operation is performed by carrier personnel or in the presence of
carrier personnel. This is consistent with the definition adopted in
the October 30, 2003 final rule for ``loading incidental to movement''
of a hazardous material. Note that, for purposes of this rulemaking,
the reference to carrier personnel means the crew of the train that
delivered the rail tank car to the facility.
C. Security
One appellant notes that ``Federal HazMat Law provides authority
for DOT to regulate the `safe transportation, including security, of
hazardous materials * * * in commerce. * * * DOT's authority over
hazardous materials security is no less important than its safety
authority. DOT's authority in this area should be clearly stated in the
rule.' '' (IME; emphasis in the original) We agree; indeed, as we noted
in the notice we published extending the comment period for the NPRM
(66 FR 59220), this rulemaking has a particular importance for
hazardous materials transportation security. In light of continuing
terrorist threats and the critical need to assure the security of
hazardous materials at facilities and in transportation, a rule that
specifies the applicability of the HMR to specific functions and
activities and clarifies the relationship of the HMR to programs and
regulations administered by ATF, EPA, and OSHA is more important than
ever.
We note in this regard that Sec. 1711 of the Homeland Security Act
of 2002 (Pub. L. 107-296) amended Federal hazmat law to authorize the
Secretary of Transportation to ``prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce'' and that the HMR ``shall
govern safety aspects, including security, of the transportation of
hazardous material the Secretary considers appropriate.'' (Emphasis
added.) As a result, the Department of Homeland Security (DHS) and DOT
share responsibility for hazardous materials transportation security.
We consult and coordinate with DHS concerning security-related
hazardous materials transportation regulations to assure that hazardous
materials transportation security requirements are consistent with the
overall security policy goals and objectives established by DHS and
that the regulated industry is not confronted with differing and,
perhaps, inconsistent security regulations promulgated by multiple
agencies.
In consideration of the foregoing, we are granting the IME appeal
concerning DOT's authority to regulate hazardous materials
transportation security. In this final rule, we are revising Sec.
171.1 in several places to reflect DOT's responsibility for hazardous
materials transportation security.
IV. Appeals Denied
A. Consistency of HM-223 With Federal Hazmat Law
DGAC, Dow, and DuPont assert that the October 30, 2003 final rule
is inconsistent with Federal hazardous materials transportation law
(Federal hazmat law; 49 U.S.C. 5101 et seq.), particularly with respect
to the final rule provisions about the beginning and end points of
transportation. ``Nowhere does [Federal hazmat law] even suggest that a
carrier's possession of hazardous materials is the point at which DOT
regulatory authority attaches. To the contrary, the HMR currently and
correctly place great emphasis on the functional responsibilities and
actions of hazmat employers and employees. Therefore, we petition
[PHMSA] to reconsider the language and content of Section 171.8 * * *
'' (DGAC)
We disagree. First, reference to carrier possession or presence at
loading and unloading operations provides the most accurate, simple,
and clear method for
[[Page 20022]]
establishing the starting and ending points of transportation in
commerce. Second, DOT has gone beyond those basic definitions to
regulate activities that affect safe transportation in commerce
irrespective of who performs them. Contrary to appellants' claim, this
approach is both functional and fully consistent with Federal hazmat
law.
Congress instructed the Secretary to ``prescribe regulations for
the safe transportation, including security, of hazardous materials in
intrastate, interstate, and foreign commerce.'' 5 U.S.C. 5103(b). It
authorized the Secretary to regulate those ``transporting hazardous
material in commerce'' as well as those ``causing hazardous material to
be transported in commerce.'' Id. It defined transportation to mean the
``movement of property and loading, unloading, or storage incidental to
the movement.'' 5 U.S.C. 5102(12). As we explained in the HM-223
rulemaking, these particular terms are not defined. 68 FR 61906.
That regulatory mandate places upon DOT the responsibility to
determine when transportation in commerce begins, i.e., what loading,
unloading, and storage is incidental to the movement of hazardous
materials, and what other activities impact the safe transportation in
commerce. We did this in two ways.
First, we defined loading and unloading incidental to movement to
be keyed to the possession or presence of the carrier. A carrier is any
person that transports property in commerce (see Sec. 171.8
(definition of carrier)). We defined storage incidental to movement to
mean storage of the hazardous material by any person between the time
the carrier takes physical possession of the material for the purpose
of transporting it until the material is delivered to the destination
indicated on a shipping document, package marking, or other medium.
Thus, the carrier's responsibility for the hazardous material provides
the most reliable method to distinguish between loading, unloading, and
storage that is incidental to the movement of property in commerce and
loading, unloading, and storage that is being performed for some other
purpose unrelated to the movement of property in commerce. The
definitions also provide clarity to regulated persons. More
specifically, loading by the carrier or in the carrier's presence best
represents loading that is incidental to the property's movement.
Unloading by the carrier or in the carrier's presence best represents
unloading that is incidental to the property's movement. And storage by
any person after the carrier has taken possession of the property but
before the property has been physically delivered to the destination
best represents storage that is incidental to the property's movement.
Put another way, because anyone who transports property in commerce is
a carrier, when no carrier is present, loading or unloading of property
is not associated with that property's transportation in commerce.
Similarly, storage of property prior to a carrier taking possession of
the property or subsequent to the carrier relinquishing possession of
the property at its destination is not associated with that property's
transportation in commerce. In all these circumstances, the definitions
also make it plain when regulatory authority begins and ends.
This line must be drawn distinguishing loading, storage, and
unloading incidental to movement from other types of loading, storage,
and unloading to avoid DOT regulation of activities that do not impact
safe transportation in commerce. For example, the preamble to the
October 30, 2003 final rule explains that a broader definition of
storage would result in DOT regulation of long-term storage operations
at shipper and consignee facilities. 68 FR 61915, 61919-20. Similarly,
a broader definition of unloading would result in DOT regulation of
unloading that is performed after transportation has ended, such as
when a rail tank car is unloaded directly into a manufacturing process
by a consignee, often after being stored for a substantial period of
time after delivery by a carrier. See 68 FR 61917. Outcomes like these
would be contrary to the intent of Congress in directing DOT to
promulgate regulations governing safe transportation of hazardous
materials, while giving other agencies, such as OSHA, EPA, and ATF,
regulatory authority over fixed facilities.
Second, when functions that might be performed by entities other
than a carrier or outside of the carrier's presence affect the safety
of the transportation of materials in commerce, they are regulated in a
functional approach irrespective of who performs them. There are many
areas where this approach applies, but two primary ones. First, pre-
transportation functions are functions that are required to assure the
safe transportation of a hazardous material in commerce, irrespective
of who is performing the function. One key pre-transportation function
is loading when performed by a shipper or other person in advance of a
carrier taking possession of the material to transport it. Accordingly,
as we explained in the rulemaking, when any person ``performs a loading
function prior to the carrier's arrival * * * that function is a pre-
transportation function and is subject to all applicable regulatory
requirements.'' 68 FR 61909. (On the other hand, there is no similar
regulation of unloading activities after transportation has ended--so-
called ``post-transportation functions''--because once transportation
of the property has been completed, unloading will not affect the
safety of transportation in commerce.) Second, the HMR apply to
packaging manufacturers and requalifiers and to packagings authorized
for the transportation of hazardous materials in commerce; the
packaging requirements apply to the packaging at any point, including
prior to a carrier taking possession of the package for purposes of
transporting it. Accordingly, contrary to the claim of the appeal, as
with current law, the new rulemaking is fully consistent with Federal
hazmat law and places strong emphasis on functional responsibilities.
DGAC suggests that the October 30, 2003 final rule's discussion of
the relationship of the HMR to regulations promulgated by other Federal
agencies such as OSHA and EPA ``completely ignores Congress' intent to
ensure uniformity in regulations that impact the transportation of
hazardous materials. * * * [PHMSA]'s interpretation in the preamble of
HM-223 gives preeminence to OSHA and EPA regulations at the expense of
hazardous materials regulatory uniformity as required under the Federal
Hazardous Materials Law.'' Again, we disagree. The preamble to the
October 30, 2003 final rule does not give preeminence to OSHA and EPA
regulations at the expense of hazardous materials regulatory
uniformity. Rather, the preamble recognizes that, in order to determine
the extent to which each agency's regulations apply to specific
situations, we must determine Congressional intent as expressed in all
of the statutes that provide for Federal and non-Federal jurisdiction
over activities related to the life cycle of a hazardous material. The
Occupational Safety and Health Act (OSH Act), which provides the
statutory authority for regulatory programs administered by OSHA, the
authorizing statutes for the regulatory programs administered by EPA,
and the Organized Crime Control Act of 1970, which provides the
statutory basis for ATF programs applicable to the safety and security
of explosives, express different statutory purposes and establish
different Federal-state-local government relationships. While
appellants are correct that Federal hazmat law
[[Page 20023]]
provides for nationally uniform regulations applicable to the
transportation of hazardous materials, the authorizing statutes for
other agency programs for the regulation of hazardous materials may not
provide for such national uniformity of regulations. Indeed, in the
case of OSHA and EPA, Congressional intent is clear that non-Federal
entities should be permitted to establish more stringent regulations
than those promulgated by OSHA and EPA for worker and environmental
protection. Taken together, the various statutes establishing hazardous
materials regulatory programs in DOT, OSHA, EPA, and ATF provide for
complementary regulatory programs that encompass differing, but not
necessarily contradictory, Federal-state-local relationships. The
provisions adopted in the October 30, 2003 final rule provide for
nationally uniform regulations for the transportation of hazardous
material in commerce that are consistent with Federal hazmat law and
with the statutes authorizing the hazardous materials regulatory
programs administered by OSHA, EPA, and ATF.
DGAC raises a concern about transport vehicles that are DOT-
authorized packagings for the transportation of hazardous materials.
``Transport vehicles bearing DOT specification identification markings
are instruments of commerce and should remain under the regulatory
supervision of DOT at all times they are marked to indicate they meet
the DOT specification requirements. Section 5104 of [Federal hazmat
law] addresses representation and tampering and we are certain it
applies to loading, unloading, and storage without regard to whom is
physically in possession of such vehicles.'' (DGAC)
DGAC is correct that Sec. 5104 of Federal hazmat law addresses
representation and tampering. This section prohibits a person from
representing that a container or package is safe, certified, or
complies with the HMR unless the container or package meets all
applicable HMR requirements. This section further prohibits a person
from representing that a hazardous material is present in a package or
on a transport conveyance unless the material is actually present. In
addition, this section prohibits a person from altering, removing, or
tampering with a marking, label, placard, or shipping paper description
or with a package or transport conveyance used to transport hazardous
material.
We do not agree that the provisions adopted in the October 30, 2003
final rule are inconsistent with Sec. 5104 of Federal hazmat law. DGAC
is correct that the prohibitions in Sec. 5104 apply without regard to
who is physically in possession of the hazardous materials package or
transport conveyance at any given time. As we have stated previously,
however, the definition of ``transportation in commerce'' adopted in
the October 30, 2003 final rule does not mean that the provisions of
Federal hazmat law or the HMR apply only when a hazardous material is
actually being transported in commerce. Regulated pre-transportation
functions generally occur prior to the actual transportation in
commerce of a hazardous material; similarly, specification packaging
requirements apply at all times a packaging is marked to indicate
conformance with a packaging specification even if the packaging is not
in transportation in commerce. Thus, the representation and tampering
prohibitions specifically addressing hazardous materials packages or
transportation conveyances in Sec. 5104 of Federal hazmat law apply
whether or not the package or transportation conveyance is in
transportation in commerce at the time that tampering occurs.
For the reasons outlined above, the Dow and DGAC appeals that
assert that the October 30, 2003 final rule is not consistent with
Federal hazmat law are denied.
DuPont asserts that ``[PHMSA] has created new terminology with
references to pre and post transportation functions that do not appear
in the statute. * * * This concept is not supported by statute and
represents a departure by [PHMSA] from current practices and
legislative history.'' DuPont is correct that the term ``pre-
transportation'' does not appear in Federal hazmat law. We disagree,
however, that the concept is not supported by statute and represents a
departure from current practices. The HMR currently apply to a number
of activities performed before a hazardous material is transported in
commerce. The October 30, 2003 final rule defines ``pre-transportation
functions'' to mean activities performed prior to the transportation of
a hazardous material that affect the safe transportation of the
hazardous material. These activities are currently regulated under the
HMR, so the definition does not represent a departure from current
practices. Moreover, the definition is consistent with Federal hazmat
law, which clearly recognizes the critical safety impact of activities
performed in advance of transportation by persons who cause the
transportation of hazardous materials in commerce. Indeed, Federal
hazmat law recognizes the importance of national uniformity in these
areas with a specific preemption provision applicable to state, local,
and Indian tribe requirements on, among other functions: (1) The
designation, description, and classification of hazardous material; (2)
the packing, repacking, handling, labeling, marking, and placarding of
hazardous materials; and (3) the preparation, execution, and use of
shipping documents related to hazardous material and requirements
related to the number, contents, and placement of these documents. 49
U.S.C. 5125(b).
SPCMA appeals the definitions for ``loading incidental to
movement'' and ``unloading incidental to movement'' adopted in the
October 30, 2003 final rule, asserting that the definitions are
inconsistent with Sec. 5101(12) of Federal hazmat law, which defines
``transportation'' as ``the movement of property and loading,
unloading, and storage incidental to the movement.'' 49 U.S.C.
5102(12). ``DOT infers that the descriptor phrase `incidental to
movement' applies to `movement,' `loading,' and `unloading.' We believe
that the descriptor phrase `incidental to movement' applies only to
`storage.' '' (SPCMA) This issue was discussed in detail in the
preamble to the October 30, 2003 final rule (68 FR 61914). SPCMA offers
no new information to support its view beyond its stated belief;
therefore, the appeal is denied.
B. Relationship of HMR to OSHA, EPA, and ATF Requirements
Several appellants raise concerns about the explanations offered in
the preamble to the October 30, 2003 final rule concerning the
relationship of the HMR to requirements applicable to hazardous
materials promulgated by OSHA, EPA, and ATF. The October 30, 2003 final
rule indicated that persons who perform regulated functions under the
HMR and facilities at which such functions are performed may be subject
to applicable standards and regulations of other Federal agencies, such
as OSHA regulations applicable to physical structures, EPA regulations
for risk management and community right-to-know, and ATF regulations
concerning the handling of explosives.
DGAC suggests that ``the way to give effect to all of the enabling
statutes (EPA, OSHA, and DOT) is to recognize, for example, that state
OSHA regulations apply to workers in many different industries, many of
which are unrelated to transportation. These regulations may be more
stringent in any given state; however, where they apply to
transportation functions they
[[Page 20024]]
must remain consistent with the hazardous materials regulations. Under
this statutory construction scheme, OSHA's regulations applicable to
construction workers may vary from state-to-state; however, those
regulations as applied to transportation workers must be uniform and
not conflict with the hazardous materials regulations.'' (DGAC) We
agree that non-Federal requirements applicable to hazardous materials
pre-transportation or transportation functions must be consistent with
the HMR. Indeed, as we stated several times in the preamble to the
October 30, 2003 final rule, a non-Federal requirement governing pre-
transportation or transportation functions or a non-Federal requirement
applicable to the design, construction, maintenance, repair, and
requalification of packagings used to transport hazardous materials in
commerce may be preempted if the requirement fails the preemption
criteria in Federal hazmat law. We also note that, separate from the
preemption criteria in 49 U.S.C. 5125, a non-Federal requirement
affecting transportation, including the transportation of hazardous
materials, may also be preempted under the commerce clause of the
United States Constitution or other statutes, such as 49 U.S.C. 20106,
31141. For example, section 20106 provides that:
Laws, regulations, and orders related to railroad safety and
laws, regulations, and orders related to railroad security shall be
nationally uniform to the extent practicable. A State may adopt or
continue in force a law, regulation, or order related to railroad
safety or security until the Secretary of Transportation ( with
respect to railroad safety matters), or the Secretary of Homeland
Security ( with respect to railroad security matters, prescribes a
regulation or issues an order covering the subject matter of the
State requirement. A State may adopt or continue in force an
additional or more stringent law, regulation, or order related to
railroad safety or security when the law, regulation, or order--
(1) is necessary to eliminate or reduce an essentially local
safety or security hazard;
(2) is not incompatible with a law, regulation, or order of the
United States Government; and
(3) does not unreasonably burden interstate commerce.
We disagree with the appellant, however, that Federal hazmat law
precludes other Federal agencies or their state counterparts from
regulating transportation workers who may perform functions regulated
under the HMR. As discussed in detail in the preamble to the October
30, 2003 final rule, the HMR may regulate the performance of a pre-
transportation or transportation function under the HMR; however, OSHA
standards may address the protective measures that must be in place to
ensure the safety of the person performing the pre-transportation or
transportation function (68 FR 61924-31). Both DOT and OSHA are
regulating functions or activities as specified in each agency's
respective authorizing statutes. Federal hazmat law requires that
regulations governing the performance of pre-transportation functions
regulated by DOT must be consistent across jurisdictional lines; the
OHSA Act permits states or localities to impose more stringent
requirements for worker protection than are specified in OSHA
standards.
It is important to note that we have well-established relationships
with EPA, OSHA, and ATF and consult frequently about jurisdictional
issues. The discussions of these relationships in the October 30, 2003
final rule reflect determinations made over a number of years as to the
extent of each agency's authority over hazardous materials at
facilities. The October 30, 2003 final rule does not break new ground
in this area nor does it change these long-standing determinations;
rather it explains each agency's regulatory authority and provides
guidance for the regulated industry on each agency's jurisdiction and
areas of overlapping jurisdiction.
In its appeal, IME asks us to make a specific determination as to
the preeminence of the HMR over long-standing OSHA standards applicable
to transportation functions that appear to conflict with the HMR. IME
cites OSHA regulations for materials classification, placarding,
labeling, and incident reporting. As we noted in the preamble to the
October 30, 2003 final rule, it is not appropriate for DOT to attempt
to clarify the applicability of other Federal agencies' statutes or
regulations to particular functions or activities. OSHA frequently
consults with us as to the applicability of the HMR to specific
functions and generally defers to DOT on questions related to the
transportation of hazardous materials. However, questions as to the
applicability of EPA, OSHA, or ATF standards and regulations and
suggestions for revising or updating EPA, OSHA, or ATF standards and
regulations should be directed to the appropriate EPA, OSHA, or ATF
office.
For the reasons outlined above, the DGAC, IME, SPCMA, and USWAG
appeals of the October 30, 2003 final rule concerning the relationship
of the HMR to standards and regulations promulgated by EPA, OSHA, and
ATF are denied.
C. Preemption of State/Local Laws and Regulations
A number of appellants express concern that the October 30, 2003
final rule permits non-Federal jurisdictions to impose non-uniform,
inconsistent, and contradictory requirements on hazardous materials
transportation. For example, one appellant asserts that, under the
October 30, 2003 final rule, ``[t]he [HMR] will apply when the tank
cars are loaded and during transportation, but the proposed rules would
allow states or localities to assume regulatory jurisdiction--perhaps
even to the point of banning shipments--once they are placed on
industry tracks. * * * [T]he same tank car on the same industry track
could be subject to DOT jurisdiction one day and local jurisdiction the
next. * * * [Subjecting rail tank cars to regulation by multiple
jurisdictions] can lead to nothing but confusion, operational
difficulty, and extra cost.'' (AGP)
Another appellant is similarly concerned about the potential for
non-uniform regulatory requirements. ``The final rule would seem to say
a [rail car] is DOT-covered when filled, but not before. It also would
seem to say [a rail car] stops being DOT-covered after being filled,
but before a shipping document is created, and yet comes back into the
sphere of DOT preemption when that paperwork is generated. This seems
illogical to us, and we are not certain that this is what the agency
actually intended. * * * When DOT withdraws from the regulatory field,
local or other Federal rules will click on; then when DOT's system
reengages it apparently will preempt those rules.'' (Eastman)
Appellants appear to have misunderstood the October 30, 2003 final
rule. First, it is important to note that DOT specification packagings,
such as rail tank cars, cargo tank motor vehicles, and cylinders, are
subject to DOT regulation at all times that the packaging is marked to
indicate that it conforms to the applicable specification requirements.
Thus, each DOT specification rail tank car must be designed and
constructed in accordance with applicable requirements and must be
maintained and repaired in accordance with applicable requirements.
These requirements apply at all times that the rail tank car is marked
to indicate that it complies with DOT specification requirements,
whether the car is empty or loaded with hazardous materials and whether
the car is awaiting pickup by a carrier, in the carrier's possession,
or delivered to a consignee. Under the Federal hazmat law, a non-
Federal entity may impose
[[Page 20025]]
requirements on DOT specification packagings only if those requirements
are substantively the same as the DOT requirements. 49 U.S.C.
5125(b)(1)(E). Thus, a rail tank car is ``DOT-covered'' for purposes of
conformance with DOT specification requirements.
Second, the October 30, 2003 final rule codifies in the HMR long-
standing, well-established administrative determinations as to the
applicability of the HMR to specific functions and activities. Thus,
under the October 30, 2003 final rule, the HMR apply, as they do now,
to pre-transportation functions such as filling a rail tank car and
preparing shipping papers. Further, under the October 30, 2003 final
rule, the HMR apply, as they do now, to transportation functions, which
are defined as loading incidental to movement, unloading incidental to
movement, and storage incidental to movement. It is not correct that a
rail car is ``DOT-covered'' when filled; rather, as is currently the
case, the filling or loading operation is subject to any applicable HMR
requirements and is subject to the preemption provisions of Federal
hazmat law. It is not correct that a rail car ``stops being DOT-
covered'' after being filled; rather, as is currently the case, storage
of a filled or loaded rail car prior to its pick-up by a rail carrier
is not storage incidental to movement and so is not subject to HMR
requirements applicable to such storage. It is not correct that a rail
car ``comes back into the sphere of DOT preemption when [a shipping
paper] is created''; rather, as is currently the case, the creation of
a shipping paper is a regulated function that must be performed in
accordance with the HMR and is subject to the preemption provisions of
Sec. 5125 of Federal hazmat law. Moreover, as already noted, a non-
Federal safety law or regulation affecting the transportation of
hazardous materials may be preempted under 49 U.S.C. 20106. CSX Transp.
Inc. v. Public Util. Comm'n of Ohio, 901 F. 2d 497 (6th Cir. 1990)
cert. denied, 498 U.S. 1066 (1991).
A more accurate description of the regulations that apply to a rail
tank car used to transport hazardous materials follows:
1. The rail tank car is designed, constructed, maintained, and
repaired in accordance with all applicable DOT specification
requirements and is marked to indicate that it conforms to these
requirements. As is currently the case, the specification requirements
apply at all times that the marking is in place, including when the car
is empty, during any loading or unloading operations, and while the car
is in storage whether or not such storage meets the definition of
``storage incidental to movement.'' PHMSA cannot envision any
circumstance where the broad preemptive scope of 49 U.S.C. 20106 would
allow a non-Federal entity to regulate the design, construction,
maintenance, or repair of a DOT specification rail tank car in any
manner.
2. As is currently the case, functions performed to prepare a rail
tank car for transportation in commerce must be performed in accordance
with applicable DOT specification requirements. Such functions include,
but are not limited to, classifying the hazardous material, filling the
rail tank car, securing closures on the rail tank car, placing placards
on the rail tank car, and preparing shipping papers for the shipment.
These pre-transportation functions are regulated under the HMR
irrespective of the entity performing the function. In the absence of a
local safety or security hazard, 49 U.S.C. 20106 preempts any non-
Federal regulation of these pre-transportation functions and, even if
such a local safety or security hazard exists, 49 U.S.C. 5125 provides
that (unless there is a waiver of preemption) a non-Federal entity may
not impose requirements for pre-transportation functions that are not
substantively the same as the DOT requirements. Persons performing pre-
transportation functions and facilities at which pre-transportation
functions are performed may be subject to Federal requirements
applicable to worker or environmental protection; non-Federal entities
may impose more stringent worker or environmental protection
requirements so long as those requirements do not interfere or conflict
with the performance of the pre-transportation function that is
regulated under the HMR or with the specification requirements
applicable to the packaging that will be used for the shipment. Persons
performing pre-transportation functions and facilities at which pre-
transportation functions are performed may also be subject to Federal
requirements applicable to the handling and storage of explosives at
fixed facilities.
3. As is currently the case, storage of a filled rail tank car at
the consignor's facility while awaiting pick-up by a rail carrier is
not subject to HMR requirements applicable to such storage. Note,
however, that specification requirements applicable to the rail tank
car continue to apply during such storage. Note as well that, as
discussed in the October 30, 2003 final rule, for purposes of
enforcement of the HMR, we would expect the person offering the rail
tank car for transportation to be able to demonstrate compliance with
all applicable pre-transportation requirements at the time the
hazardous material is staged for pick-up by a carrier and the consignor
or his agent signs the shipping paper. Even in the absence of a signed
shipping paper, the offeror may be responsible for assuring compliance
with specific pre-transportation requirements if other factors indicate
that a particular pre-transportation activity has been completed. (See
discussion at 68 FR 61911-61912. For a more complete discussion of
offeror responsibilities under the HMR, see the NPRM published
September 24, 2004, 69 FR 57245.) Non-Federal entities may impose more
stringent worker or environmental protection requirements applicable to
such storage so long as those requirements do not interfere with the
performance of pre-transportation functions regulated under the HMR or
affect the DOT specification packaging requirements that apply to the
rail tank car.
4. As is currently the case, once a rail tank car is picked up by a
rail carrier for transportation, all applicable HMR requirements apply
to such transportation, including while the rail tank car is
temporarily stored after its pick-up by the rail carrier and prior to
its delivery to the consignee. Non-Federal entities may not impose
requirements on the transportation in commerce of a rail tank car that
are preempted under the criteria in 49 U.S.C. 5125 and 20106.
5. As is currently the case, once the rail tank car is delivered to
the consignee, storage of the car on private track or private siding is
not subject to regulation under the HMR. Note, however, that
specification requirements applicable to the rail tank car continue to
apply during such storage. Non-Federal entities may impose more
stringent worker or environmental protection requirements applicable to
such storage so long as those requirements do not affect the DOT
specification packaging requirements that apply to the rail tank car.
6. Consignee-conducted rail tank car unloading operations are not
subject to regulation under the HMR. Non-Federal entities may impose
more stringent worker protection or environmental protection
requirements applicable to such unloading operations so long as those
requirements do not affect the DOT specification packaging requirements
that apply to the rail tank car.
[[Page 20026]]
7. As is currently the case, for consignees who ship empty rail
tank cars that contain a residue of a hazardous material, storage of
such tank cars on private track is not subject to regulation under the
HMR. Non-Federal entities may impose more stringent worker protection
or environmental protection requirements applicable to such storage so
long as those requirements do not affect the DOT specification
packaging requirements that apply to the rail tank car.
8. As is currently the case, for residue shipments in rail tank
cars, functions performed to prepare the rail tank car for
transportation in commerce must be performed in accordance with
applicable DOT specification requirements. Such functions include
classifying the hazardous material, securing closures on the rail tank
car, placing placards on the rail tank car, and preparing shipping
papers for the shipment. These pre-transportation functions are
regulated under the HMR irrespective of the entity performing the
function. In the absence of a local safety or security hazard, 49
U.S.C. 20106 preempts any non-Federal regulation of these pre-
transportation functions and, even if such a local safety or security
hazard exists, 49 U.S.C. 5125 provides that (unless there is a waiver
of preemption) a non-Federal entity may not impose requirements for
pre-transportation functions that are not substantively the same as the
DOT requirements. Persons performing pre-transportation functions and
facilities at which pre-transportation functions are performed may be
subject to Federal requirements applicable to worker or environmental
protection; non-Federal entities may impose more stringent worker or
environmental protection requirements so long as those requirements do
not interfere with the performance of the pre-transportation function
that is regulated under the HMR.
Appellants ``acknowledge that there are Federal, state, and local
laws and regulations in force that may affect the transportation of
hazardous materials. We are concerned that * * * statements in the
final rule * * * may be read as encouraging the promulgation of
hundreds of constraints and conflicting requirements contrary to the
precept that our nation cannot function effectively without a national
system of transportation regulation.'' (DGAC) We do not agree that the
October 30, 2003 final rule will encourage non-Federal entities to
enact ``hundreds of constraints and conflicting requirements''
applicable to the transportation of hazardous materials in commerce.
The October 30, 2003 final rule does not impose new preemption
standards; rather, it restates the current preemption standards in the
Federal hazmat law and clarifies their applicability to certain
functions and operations. PHMSA will continue to apply the preemption
standards in Federal hazmat law on a case-by-case basis, considering
the effect of a non-Federal requirement on the transportation of
hazardous materials in commerce as we make our determinations. While
PHMSA's determinations under 49 U.S.C. 5125(d) consider only the
preemption criteria in Federal hazmat law, non-Federal requirements
that fail the preemption criteria in any Federal law are preempted.
DGAC notes that ``[PHMSA] failed to provide a list of past
[preemption] findings under the obstacle test'' and asks us to include
such a list in the preemption paragraph of Sec. 171.8. We do not agree
that this is necessary. PHMSA's Office of the Chief Counsel has
included on its Web site at http://rspa-atty.dot.gov/ a detailed index
to preemption of state and local laws and regulations under Federal
hazmat law with links to individual preemption determinations as
published in the Federal Register.
For the reasons outlined above, the AGP, ADM, DGAC, DuPont,
Eastman, IME, SPCMA, and USWAG appeals related to preemption of non-
Federal requirements are denied. In deference to appellants' concerns,
however, in this final rule, we are revising Sec. 171.1(f) to place
the preemption standards first in the section and to add a
clarification that non-Federal entities may impose regulations on
functions that are not covered by the HMR or Federal hazmat law, except
where PHMSA has specifically determined that the regulation of the
hazardous materials-related function is not necessary. Appellants
correctly note that PHMSA has in some cases determined that safety or
security regulations may not apply to all hazardous materials or to
specific types of shipments. For example, PHMSA has determined that
escorts are required for certain types of radioactive materials
shipments, but that escorts are not required for other types of
hazardous materials shipments. Thus, non-Federal escort requirements
applicable to materials for which PHMSA has determined that escorts are
not necessary are preempted (see Preemption Determination 20, 66 FR
29867, June 1, 2001). Generally, non-Federal requirements may be
subject to preemption when PHMSA determines that no such regulations
may be imposed at all.
D. Storage Incidental to Movement
Consistent with long-standing interpretations and administrative
determinations issued by the agency, the October 30, 2003 final rule
defined ``storage incidental to movement'' for purposes of
applicability of the HMR to mean storage by any person of a transport
vehicle, freight container, or package containing a hazardous material
between the time that a carrier takes physical possession of the
hazardous material for the purpose of transporting it until the package
containing the hazardous material is physically delivered to the
destination indicated on a shipping document, such as a shipping paper,
bill of lading, waybill, or similar document (see discussion at 68 FR
61919). Storage of hazardous materials at an offeror's facility prior
to a carrier taking physical possession of the shipment is not subject
to regulation under the HMR nor is storage at a consignee facility
after the shipment has been delivered.
In its appeal letter, IME notes that ``DOT does not describe what
it regulates when packages are stored incidental to movement * * * DOT
should correct this oversight. For example, does DOT's regulatory
authority control the number of vehicles or the separation distance
that must be maintained between these transport vehicles? Does DOT's
regulatory authority control the amount or kind of hazardous materials
that may be in storage at the same location at the same time? Does DOT
regulatory authority control the physical security of packages stored
incidental to transportation? * * * A clear statement of DOT `storage
authority' will not `preempt' other Federal agency jurisdictions, but
it will, with one exception, trigger provisions of statutes implemented
by these agencies * * * that exclude `transportation' where DOT has
exercised its authority from the applicability of their rules.''
The HMR apply to hazardous materials stored incidental to movement.
Such storage is a transportation function as that term is defined in
the final rule. Hazardous materials stored incidental to movement are
subject to specific HMR requirements applicable to such storage. For
example, such hazardous materials must be accompanied at all times by
appropriate shipping documentation, including emergency response
information and an emergency response telephone number in accordance
with Subparts C and G of Part 172. Further, package markings, labels,
and placards
[[Page 20027]]
required under Subparts D, E, and F of Part 172 must remain on the
packages or transport vehicles throughout the time that they are stored
incidental to movement. In addition, hazardous materials stored
incidental to movement are subject to the requirements for security
plans in Subpart I of Part 172. The security plan must include an
assessment of possible transportation security risks and appropriate
measures to address the assessed risks. At a minimum, a security plan
that covers hazardous materials stored incidental to movement must
include elements related to personnel security and unauthorized access.
The HMR specify segregation and stowage requirements for hazardous
materials in or on a transport vehicle, but do not currently address
the amounts or types of hazardous materials that may be stored at one
time in one location at a transportation facility. However, as noted
below, we are initiating a rulemaking to determine whether more
specific requirements applicable to materials stored incidental to
movement are necessary.
Two appellants ask us to include in the definition of ``storage
incidental to movement'' shipments that are awaiting pick-up by a
carrier. ``At what point after [loading] does [PHMSA] anticipate
storage * * * to begin? Having a filled packaging with the intent to
ship should remain under HMR instead of being subject to different
regulations pending the unpredictable arrival of a carrier.'' (DuPont)
Similarly, ``DOT needs to clarify the point at which `loading' ends and
storage not incidental to transportation begins. * * * Current industry
practice with regard to these activities are dictated by time and space
and can result in situations where the regulations of the vehicle and
its partially loaded contents could shift between regulatory agencies
and requirements. For example, if during the course of loading a
vehicle, loading is stopped for a meal break, for a rest break, for a
fire drill, has the vehicle transitioned into non-transportation
storage? If a vehicle is left partially or fully loaded with explosives
overnight on the shipper's property pending the arrival of the carrier,
as long as the vehicle is in conformance with 49 CFR 397.5(b), is this
storage beyond DOT purview? * * * Or do DOT's rules contemplate a
transitional period during which hazardous materials are `staged' for
loading?'' (IME)
As defined in the final rule, ``storage incidental to movement''
does not include hazardous materials stored at a shipper's facility
prior to a carrier taking possession of the shipment for purposes of
transporting it. Thus, as a general rule, storage of a hazardous
material after it is loaded into a freight container or transport
vehicle and prior to a carrier taking possession of the material is not
subject to HMR requirements applicable to storage incidental to
movement. Clearly, under the scenario described by IME where the
loading operation is interrupted for brief periods of time for a meal
or rest break, the hazardous materials being loaded do not
``transition'' into non-transportation storage. However, loaded
vehicles that are stored overnight or for a period of days awaiting
pick-up by a carrier are not considered to be stored incidental to
movement and, thus, are not subject to HMR requirements applicable to
such storage. Note, however, that loaded vehicles for which applicable
pre-transportation functions have been completed and that are awaiting
pick-up by a carrier are subject to HMR regulations applicable to such
pre-transportation functions. Hazardous materials loaded into such
vehicles must conform to applicable segregation and blocking and
bracing requirements. Further, such vehicles must be marked, labeled,
and placarded in accordance with HMR requirements, and shipping
documentation and emergency response information must conform to
applicable HMR requirements. Such vehicles may be used by DOT
enforcement personnel to identify violations of the HMR with respect to
the performance of pre-transportation functions applicable to the
shipment.
Note that, while shipments stored at a consignor's facility
awaiting pick up by a carrier are not subject to HMR requirements
applicable to such storage, non-Federal requirements applicable to such
shipments may be limited. For example, a non-Federal requirement that
imposed differing packaging, marking, or labeling regulations during
the time that the shipment was staged for pick-up by a carrier would
likely be preempted under Federal hazmat law.
We note concerning the IME scenarios described in its appeal letter
that the regulations at 49 CFR 397.5 address a motor carrier's
responsibility for attendance and surveillance of explosives and other
types of hazardous materials during transportation. Generally, under 49
CFR 397.5, a motor vehicle that contains a Division 1.1, 1.2, or 1.3
explosive must be attended at all times by the driver of the motor
vehicle or by the motor carrier's qualified representative. Paragraph
(b) of 49 CFR 397.5 excepts motor vehicles from this attendance
requirement under certain conditions. Because the requirements of 49
CFR 397.5 establish a motor carrier's responsibility for attendance and
surveillance, they are not relevant to the situation described by IME
where a shipper is preparing explosives for transportation and a
carrier has not yet taken possession of the explosives shipment.
Questions concerning the applicability of 49 CFR 397.5 to specific
persons and operations should be directed to the Federal Motor Carrier
Safety Administration.
Both DuPont and IME ask us to consider a modification to the
definition of ``storage incidental to movement'' to accommodate
shipments staged for pick-up by a carrier or hazardous materials staged
for loading prior to pick-up by a carrier. Broadening the definition of
``storage incidental to movement'' in the manner requested is beyond
the scope of this rulemaking; therefore, the DuPont and IME appeals
concerning this issue are denied. As indicated above, however, while
shipments stored at a consignor's facility awaiting pick up by a
carrier are not subject to HMR requirements applicable to such storage,
non-Federal requirements applicable to such shipments may be limited.
For example, a non-Federal requirement that imposed differing
packaging, marking, or labeling regulations during the time that the
shipment was staged for pick-up by a carrier could be subject to
preemption under Federal hazmat law under both the covered subject and
dual compliance tests.
We note in this regard that we are initiating a rulemaking to
address hazardous materials storage issues and, specifically, storage
issues related to the transportation of explosives in commerce. We
expect to address questions concerning aggregation and segregation of
hazardous materials, facility safety and security requirements,
attendance and surveillance, and similar issues.
E. Unloading Incidental to Movement
Several appellants ask us to reconsider our definition of
``unloading incidental to movement'' in the October 30, 2003 final
rule. ``[PHMSA] should reconsider its definition of unloading
incidental to movement for bulk. An individual's employer or occupation
should not dictate whether the HMR apply to functions being performed.
* * * [PHMSA should] apply consistent logic to unloading and make
unloading performed by a shipper post-transportation. It is equally
important to have nationally uniform regulations over both `pre-
transportation' and `post-transportation' functions to ensure safety
and the efficient transportation of hazardous materials.'' (Dow)
[[Page 20028]]
This issue was addressed in detail in the preamble to the October
30, 2003 final rule (see 68 FR 61916-61919). Appellants restate the
points offered in their comments to the HM-223 NPRM, but offer no new
information to support their position that PHMSA should regulate
unloading operations conducted by consignees after a carrier has
delivered a hazardous material shipment. As we stated in the preamble
to the October 30, 2003 final rule, we have never promulgated
regulations applicable to ``post transportation functions'' (except for
rail tank car unloading operations); the HMR are promulgated under the
mandate in Federal hazmat law that the Secretary ``prescribe
regulations for the safe transportation of hazardous material in
intrastate, interstate, and foreign commerce'' (49 U.S.C. 5103(b);
emphasis added.) Congress recognized that post-transportation
activities should be regulated by Federal agencies, such as OSHA, EPA,
and ATF, that generally have authority to regulate non-transportation
activities involving hazardous materials. Congress further recognized
that non-transportation operations need not be governed by one set of
nationally uniform regulations in both the OSH Act and the various
statutes that authorize EPA's programs by explicitly permitting non-
Federal entities to impose requirements for worker or environmental
protection that are more stringent than Federal requirements.
An appellant suggests that an individual's ``employer or
occupation'' is not relevant to the issue of whether the HMR should
apply to a particular function or activity. Again, this issue was
addressed in detail in the October 30, 2003 final rule (68 FR 61917-
61918). The appellant restates comments made in response to the HM-223
NPRM, but offers no new information to support its opinion.
One appellant notes that ``[o]ver the years DOT has issued a number
of exemptions from the requirements for disconnecting the loading lines
of a tank car when unloading is disrupted under specific conditions. *
* * The issuance of these exemptions is evidence that the intent of DOT
has been to regulate the loading and unloading of [tank cars] whether
on railroad tracks or private siding.'' (SPCMA) SPCMA is correct that
until publication of the October 30, 2003 final rule, the HMR included
detailed requirements for consignees conducting rail tank car unloading
operations. As we explained in detail in the preamble to the October
30, 2003 final rule, however, the provisions in the final rule
applicable to rail tank car unloading stem from changes in the way rail
tank cars are used in manufacturing processes and are consistent with
PHMSA's current regulation of cargo tank unloading operations (68 FR
61917-61918). The appellant offers no new information to support its
view that the HMR should continue to apply to rail tank car unloading
operations.
For the reasons outlined above, the Akzo, ADM, Dow, DuPont,
Eastman, SPCMA, Sulphur Institute, and USWAG appeals related to the
definition of ``loading incidental to movement,'' except as discussed
earlier in this preamble under the ``Appeals Granted'' section, are
denied.
With respect to unloading operations, Dow suggests that we define
``connected to a manufacturing process'' to mean ``a container used for
the transportation of hazardous materials that is directly connected to
a manufacturing process without intermediate storage.'' Because we do
not use the phrase ``connected to a manufacturing process'' in the
revised text of the regulations adopted in the October 30, 2003 final
rule, a definition is not necessary. Therefore, this appeal is denied.
However, interested persons should note that the definition suggested
by Dow is, in fact, consistent with the discussion of rail tank car
unloading operations in the preamble to the October 30, 2003 final rule
(see 68 FR 61917) and was what we intended when we used the phrase
``unloading into a manufacturing process.''
F. Definition of ``Handling''
One appellant is concerned that the October 30, 2003 final rule
does not include a definition for ``handling.'' ``Congress has provided
DOT statutory authority over the `handling' of hazardous materials in
transportation, including incidental loading, unloading, and storage,
at facilities and by hazmat employees. * * * It is unclear how DOT can
completely explain the reach of its jurisdiction without the
Department's interpretation of its handling authority. This oversight
should be addressed.'' (IME) IME is correct that neither the NPRM
published under this docket nor the October 30, 2003 final rule define
the term ``handling.'' Because this issue was not previously addressed
in either the NPRM or the final rule, IME's appeal with respect to the
definition of ``handling'' is beyond the scope of this rulemaking and
is, therefore, denied.
G. HMR Applicability to Facilities
Several appellants suggest that the October 30, 2003 final rule's
discussion of the applicability of the HMR to facilities at which
hazardous materials are prepared for transportation or stored
incidental to movement in transportation is inconsistent with Federal
hazmat law and with HMR requirements for security plans. ``At 49 U.S.C.
5106, Congress granted [DOT] statutory jurisdiction over ``facilities
used in handling and transporting' hazardous material. * * * While DOT
has made a point of not exercising its authority under Sec. 5106,
there can be no doubt that the Department's statutory jurisdiction
extends to fixed facilities and hazmat employees without regard to who
employs them.'' (IME) Similarly, ``[In HM-223, PHMSA] clearly rejected
the arguments that [PHMSA]'s jurisdiction should extend to fixed
facility operations, other than `pre-transportation' and
`transportation functions.' This artificial limit to [PHMSA]'s
jurisdiction, however, is inconsistent with the final rule under HM-
232, which requires a `security plan' for any facility that ships a
placarded load. HM-232 contains many requirements applicable to
facilities that do not fall under the definition of `pre-transportation
functions' or `transportation functions.' * * * Consequently, there is
an inherent conflict between HM-223 and the requirements of HM-232 and
any other requirement in the HMR that cannot be labeled as a `pre-
transportation function' or a `transportation function', of which there
are many.'' (DGAC)
We do not suggest in the October 30, 2003 final rule that functions
that fall outside the definitions of ``pre-transportation function'' or
``transportation function'' are not regulated under the HMR. DGAC
correctly notes that there are a number of requirements in the HMR that
are neither pre-transportation nor transportation functions `` the
requirements applicable to specification packagings are one example;
training requirements for hazmat employees are another. Nor do we
suggest in the October 30, 2003 final rule that DOT does not have the
authority to prescribe regulations applicable to facilities. Indeed,
where we have found it to be necessary to improve hazardous materials
transportation safety or security, we have adopted regulations
specifically applicable to facilities at which hazardous materials are
handled during transportation or in preparation for transportation,
most notably, as DGAC again correctly notes, with respect to security
plans. Rather, the October 30, 2003 final rule says that, insofar as
worker protection, environmental protection, or the handling of
explosives are concerned, OSHA, EPA, and ATF regulations may
[[Page 20029]]
apply to facilities at which functions regulated under the HMR are
performed. This does not mean that neither Federal hazmat law nor the
HMR apply to hazardous materials facilities, only that the regulated
community should be aware that OSHA, EPA, and ATF regulations cover
facilities at which functions regulated under the HMR are performed.
For the reasons stated above, the DGAC and IME appeals concerning
the alleged inconsistency of the October 30, 2003 final rule with
requirements in the HMR applicable to facilities or other than pre-
transportation or transportation functions are denied.
Dow suggests that there is an apparent inconsistency in the way
that the October 30, 2003 final rule discusses the applicability of the
HMR to operations that occur solely within a facility where public
access is restricted. Dow notes that the rule makes the general
statement that rail and motor vehicle movements that take place solely
within a contiguous facility boundary where public access is restricted
are not subject to the HMR; however, the rule also imposes some minimal
requirements on loading and unloading operations not otherwise subject
to regulation under the HMR. Dow suggests that ``the new regulations
create questions and inconsistencies that introduce the potential for
other regulatory agencies to step in and create regulations that may
conflict with those of the HMR.'' We disagree. The specific area where
the HMR apply to operations at a facility is for loading and unloading
of rail tank cars. The requirement, as adopted in the October 30, 2003
final rule, is for rail cars to be secured against movement or
coupling. As explained in the preamble to the October 30, 2003 final
rule, this requirement is necessary to protect train and engine crews
operating within a shipper or consignee facility. The requirement is
consistent with OSHA standards applicable to rail tank car loading and
unloading. It is included in the HMR to assure that shippers and
consignees are aware of their obligation to have procedures in place to
protect train and engine crews operating at their facilities.
H. Training
Several appellants assert that the provisions of the October 30,
2003 final rule will result in significantly increased training costs
for hazmat employers. ``[C]ompany trainers responsible for training
employees are not always limited to just one locality/jurisdiction.
Therefore, trainers will need a clear understanding a variety of
requirements [sic] depending on the location of the fixed facility.
This could increase costs since multiple training programs would have
to be created and maintained * * *.'' (Dow) Similarly, ``there is the
opportunity for the application of multiple sets of regulations,
depending on the circumstances * * * that will cause great confusion
and significant training difficulties. This will have an adverse impact
on safety * * *.'' (DuPont)
Industry's concern about the potential for increased training costs
appears to stem from a misunderstanding of the October 30, 2003 final
rule. As explained a number of times in the preamble to that final
rule, the provisions adopted for the most part merely restate and
clarify long-standing administrative determinations as to the
applicability of the HMR to certain functions and activities related to
the transportation of hazardous materials in commerce. Under the
October 30, 2003 final rule, the HMR apply, as they do now, to pre-
transportation and transportation functions. OSHA, EPA, and ATF
regulations apply, as they do now, to operations at fixed facilities
and to the facilities themselves. Non-Federal governments, as they do
now, may impose more stringent requirements than OSHA and EPA. Thus,
the October 30, 2003 final rule will not result in increased training
costs; company training programs should already include OSHA, EPA, ATF,
and non-Federal government requirements applicable to individual
facilities. Indeed, the October 30, 2003 final rule should result in
decreased training costs since companies will no longer be required to
train employees on rail tank car unloading requirements in both the HMR
and OSHA standards. Therefore, the Dow and DuPont appeals related to
increased training costs are denied.
I. Transloading Versus Repackaging
One appellant asks for clarification of HMR applicability to
``transloading'' and ``repackaging,'' noting that ``repackaging'' is
not defined in the October 30, 2003 final rule. Two other appellants
ask us to revise the definition of ``transloading'' adopted in the
October 30, 2003 final rule to include transfers of hazardous materials
from bulk to non-bulk packagings and vice versa.
As noted above, transloading is a transportation operation
involving a transfer of a hazardous material from one packaging to
another for the purpose of continuing the movement of the hazardous
material in commerce. In order to meet the definition for
``transloading,'' the hazardous material must clearly be consigned to
the facility at which the transloading operation is to occur for the
sole purpose of transferring the hazardous material to or from a bulk
packaging; in other words, the ultimate destination of the hazardous
material must be known at the time that the material is delivered to
the facility and that destination must be indicated on the shipping
documentation accompanying the shipment.
The term ``repackaging'' refers broadly to the relatively common
practice of removing a hazardous material from the package in which it
is received at a consignee's facility and placing it into another type
of packaging prior to reshipping the hazardous material. The ultimate
destination of the hazardous material is not known when the material is
first delivered to the consignee's facility. Typically, the consignee
will repackage the hazardous material for resale. Repackaging is
subject to HMR requirements as a pre-transportation function--thus, the
packaging selected must conform to applicable HMR requirements, and
labels and marks must be placed on the packaging in accordance with
applicable HMR requirements. Unlike transloading, repackaging is not a
transportation function--because the ultimate destination of the
material is not known when the hazardous material is delivered to the
facility at which the material will be repackaged, transportation in
commerce ends with that delivery. Transportation begins when a carrier
picks up the repackaged hazardous material for transportation to a
subsequent consignee.
J. Miscellaneous Issues
Security. One appellant asks about the relationship of the
provisions of the October 30, 2003 final rule to the applicability of
security requirements in Subpart I of Part 172 of the HMR. ``One aspect
of HM-223 is that when the DOT safety controls are deemed to stop,
DOT's new security controls also stop. We have yet to decipher what
that means in the context of HM-232, our written security plan, and our
employee training related to that plan, with respect to both empty and
filled hazmat cars on our property.'' (Eastman)
The security plan requirements in Subpart I of Part 172 apply to
hazardous materials being prepared for transportation in commerce, in
addition to the actual transportation of hazardous materials. Persons
who offer certain hazardous materials for transportation in commerce
must develop and implement security plans that cover personnel,
unauthorized access, and en route security. (These requirements
[[Page 20030]]
apply to shipments of hazardous materials in amounts that require
placarding, to hazardous materials in a bulk packaging with a capacity
equal to or greater than 13,248 L (3,500 gal) for liquids or gases or
greater than 13.24 cubic meters (468 cubic feet) for solids, and to
select agents and toxins regulated by CDC.) The security plan
requirements are performance standards and deliberately provide for a
substantial degree of flexibility concerning specific measures that
should be included in the plan. Generally, however, we would expect an
offeror's security plan to address the security of covered hazardous
materials during their preparation for transportation and after
completion of such preparation prior to the shipment being picked up by
a carrier. Similarly, we would expect that empty packagings or
transport conveyances (such as rail tank cars) that are located at the
offeror's facility and will be used for the transportation of hazardous
materials covered by the security plan would also be covered by an
offeror's security plan to minimize the possibility that someone could
tamper with the packagings or transport conveyances in a way that could
impair their security during transportation. A hazardous materials
transportation security plan need not cover hazardous materials stored
at a facility for use at the facility or prior to their preparation for
transportation; similarly, a security plan need not cover hazardous
materials delivered to a facility for use at the facility.
MOTS. One appellant is concerned about the effect of the
definitions adopted in the October 30, 2003 final rule on the exception
authorized for materials of trade (MOTS) under Sec. 173.6. The final
rule does not limit the scope or otherwise change the applicability of
the HMR exception for MOTS.
Consistency with existing policy decisions and determinations. One
appellant asserts that the October 30, 2003 final rule implied ``that
there are some provisions of the final rule that are inconsistent with
[PHMSA]'s prior decisions, but the regulated community is left on its
own to determine which administrative policies and decisions have
changed and which have not (with the exception of PHMSA acknowledgement
of its reversal of policy on the unloading and storage of tank cars).
This is not a practical, reasonable or proper manner in which to alter
a prior agency decision and certainly is not in such a significant and
controversial jurisdictional rule as HM-223.'' (USWAG) The appellant
appears to have misunderstood the October 30, 2003 final rule. The
preamble to that rule is quite detailed in explaining that, except for
the applicability of the HMR to rail tank car unloading, the provisions
of the final rule concerning the applicability of the HMR to specific
functions and activities are consistent with previously published
agency decisions and determinations. Moreover, the determinations on
which the October 30, 2003 final rule is based are included in the
docket for this rulemaking. Contrary to the appellant's assertion, the
applicability of the HMR to rail tank car unloading is the only area
where we have made a determination in the October 30, 2003 final rule
that differs from previously published determinations. (The appellant's
reference, quoted above, to tank car storage is not correct. The
provisions of the October 30, 2003 final rule concerning the
applicability of the HMR to the storage of rail tank cars are
consistent with both previously published agency determinations and
with the Federal Railroad Administration's regulation of railroad
operations.)
Movement of rail tank cars. One appellant suggests that the
provisions in the October 30, 2003 final rule applicable to the
movement of rail tank cars are based on our misunderstanding of the way
that tank cars containing chlorine move to and from their final
destination. ``In general, railroad tank cars containing chlorine are
located on private track at repackaging and manufacturing facilities.
The lead car, i.e, the first car in the line, is unloaded first. In
order to move another car into place for unloading, the entire line of
loaded tank cars is moved back on railroad track from the private
siding. The empty car is pushed forward on carrier track, uncoupled,
and the remaining cars are moved back onto private siding. The empty
car is returned to the chlorine manufacturer. This process may be
repeated one or more times each day. * * * Under the final regulations
`` the tank cars may be subject to repeated DOT and State and local
jurisdiction, depending upon their location and movement from private
siding to railroad track.'' (SPCMA)
The determination in the October 30, 2003 final rule concerning the
applicability of the HMR to rail cars on private track relates to
storage of such rail tank cars only. The movements described by SPCMA
during which rail cars may be moved from private track to carrier track
for short periods of time are subject to the HMR because the movements
involve track that is part of the general railroad system of
transportation. (See discussion at 68 FR 61920-22.) The key to the
definition of ``private track'' and, therefore, to the applicability of
the HMR to operations on private track, is the devotion of that track
to the sole use of some person other than the railroad. Thus, storage
of rail cars on private track and movements of rail cars that occur
solely on private track are not subject to the HMR; however, storage of
rail cars on other than private track and movements of rail cars that
occur on other than private track are subject to applicable HMR
requirements. Non-Federal jurisdictions may not regulate the storage
and movement of rail cars on other than private track except to the
extent that such regulation meets the covered subject, dual compliance,
and obstacle tests established in Federal hazmat law.
V. Corrections
In this final rule we are making the following changes to the
October 30, 2003 final rule to correct inconsistencies and inadvertent
errors:
1. In Sec. 171.1(c), we are revising the definition of
``transportation in commerce'' for consistency with definitions used
elsewhere in the final rule.
2. In Sec. 174.67, we are revising the introductory text to
paragraph (a) to clarify that the entire section applies to
transloading operations, not just paragraph (a). In paragraphs (a)(1),
(k)(1), and (k)(2), we are revising references to ``reliable
employees'' and ``designated employees'' in favor of ``hazmat
employees'' for consistency with terminology used throughout the HMR.
In addition, we are correcting an inadvertent error that resulted in
the unintentional deletion of paragraphs (m) and (n) from this section.
VI. Regulatory Analyses and Notices
A. Statutory/Legal Authority for Rulemaking
This final rule is published under the statutory authority in 49
U.S.C. 5103(b), which authorizes the Secretary of Transportation to
prescribe regulations for the safe transportation, including security,
of hazardous material in intrastate, interstate, and foreign commerce.
To this end, in October 2003, RSPA, the predecessor agency to PHMSA,
published a final rule to clarify the applicability of the Hazardous
Materials Regulations (HMR) to functions and activities related to the
transportation of hazardous materials in commerce. This final rule
responds to appeals submitted by persons affected by the final rule and
it amends certain
[[Page 20031]]
requirements and makes minor editorial corrections.
Clarifying the applicability of the HMR helps to eliminate
confusion on the part of the regulated public, thereby facilitating
compliance and enhancing hazardous materials safety and security.
Clarifying the applicability of the HMR also has the beneficial effect
of reducing or eliminating confusion over the applicability of
regulations promulgated by other Federal agencies, such as EPA, OHSA,
and ATF, that are applicable to materials also covered by the HMR.
Finally, clarifying the applicability of the HMR helps states, local
governments, and tribal governments to determine areas when they may
regulate without being subject to preemption under Federal hazardous
materials transportation law.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is considered a significant regulatory action under
Executive Order 12866 and the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034) because of significant
public interest. This final rule clarifies and corrects a final rule
published under this docket on October 30, 2003. A regulatory
evaluation for the October 30, 2003 final rule is in the public docket
for this rulemaking. This final rule does not impose new requirements
on the regulated industry; the clarifications and corrections made in
this final rule do not affect the calculations of benefits and costs
associated with the October 30, 2003 final rule or the conclusions
about the overall impact of the final rule on the regulated community.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts state law but will not have substantial direct
effects on the states, the relationship between the national government
and the states, or on the distribution of power and responsibilities
among the various levels of government. Therefore, the consultation
requirements of Executive Order 13132 do not apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses covered subject items 1-5 above and
preempts state, local, and Indian tribe requirements not meeting the
``substantively the same'' standard.
Federal hazardous materials transportation law provides at ``
5125(b)(2) that, if DOT issues a regulation concerning any of the
covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
the final rule and not later than two years after the date of issuance.
The effective date of Federal preemption will be 90 days from
publication of this final rule in the Federal Register.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have tribal implications and does not impose substantial
direct compliance costs, the funding and consultation requirements of
Executive Order 13175 do not apply.
E. Paperwork Reduction Act
This final rule does not impose any new information collection
requirements.
F. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
G. Unfunded Mandates Reform Act
This final rule imposes no mandates and thus does not impose
unfunded mandates under the Unfunded Mandates Reform Act of 1995.
H. Environmental Assessment
We find that there are no significant environmental impacts
associated with this final rule. An environmental assessment prepared
for the October 30, 2003 final rule has been placed in the public
docket for this rulemaking.
I. Privacy Act Statement
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 174
Hazardous materials transportation, Radioactive materials, Railroad
safety.
0
In consideration of the foregoing, we are making the following
revisions and corrections to rule FR Doc. 03-27057, published on
October 30, 2003 (68 FR 61906):
PART 171--[CORRECTED]
0
1. On page 61937, in the middle column, correct the authority citation
for Part 171 to read as follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134
section 31001.
0
2. Beginning on page 61937, in the middle column, in Sec. 171.1, make
the following revisions:
0
a. Revise the introductory text;
0
b. Remove paragraph (b)(4);
0
c. Redesignate paragraphs (b)(5), (b)(6), (b)(7), (b)(8), (b)(9),
(b)(10), (b)(11), (b)(12), (b)(13), (b)(14), and (b)(15) as (b)(4),
(b)(5), (b)(6), (b)(7), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12),
(b)(13), and (b)(14), respectively; and
0
d. Revise paragraphs (c), (f), and (g).
The revisions read as follows:
[[Page 20032]]
Sec. 171.1 Applicability of Hazardous Materials Regulations (HMR) to
persons and functions.
Federal hazardous materials transportation law (49 U.S.C. 5101 et
seq.) directs the Secretary of Transportation to establish regulations
for the safe and secure transportation of hazardous materials in
commerce, as the Secretary considers appropriate. The Secretary is
authorized to apply these regulations to persons who transport
hazardous materials in commerce. In addition, the law authorizes the
Secretary to apply these regulations to persons who cause hazardous
materials to be transported in commerce. The law also authorizes the
Secretary to apply these regulations to persons who manufacture or
maintain a packaging or a component of a packaging that is represented,
marked, certified, or sold as qualified for use in the transportation
of a hazardous material in commerce. Federal hazardous material
transportation law also applies to anyone who indicates by marking or
other means that a hazardous material being transported in commerce is
present in a package or transport conveyance when it is not, and to
anyone who tampers with a package or transport conveyance used to
transport hazardous materials in commerce or a required marking, label,
placard, or shipping description. Regulations prescribed in accordance
with Federal hazardous materials transportation law shall govern safety
aspects, including security, of the transportation of hazardous
materials that the Secretary considers appropriate. In 49 CFR 1.53, the
Secretary delegated authority to issue regulations for the safe and
secure transportation of hazardous materials in commerce to the
Pipeline and Hazardous Materials Safety Administrator. The
Administrator issues the Hazardous Materials Regulations (HMR; 49 CFR
Parts 171 through 180) under that delegated authority. This section
addresses the applicability of the HMR to packagings represented as
qualified for use in the transportation of hazardous materials in
commerce and to pre-transportation and transportation functions.
* * * * *
(c) Transportation functions. Requirements in the HMR apply to
transportation of a hazardous material in commerce and to each person
who transports a hazardous material in commerce, including each person
under contract with any department, agency, or instrumentality of the
executive, legislative, or judicial branch of the Federal government
who transports a hazardous material in commerce. Transportation of a
hazardous material in commerce begins when a carrier takes physical
possession of the hazardous material for the purpose of transporting it
and continues until the package containing the hazardous material is
delivered to the destination indicated on a shipping document, package
marking, or other medium, or, in the case of a rail car, until the car
is delivered to a private track or siding. For a private motor carrier,
transportation of a hazardous material in commerce begins when a motor
vehicle driver takes possession of a hazardous material for the purpose
of transporting it and continues until the driver relinquishes
possession of the package containing the hazardous material at its
destination and is no longer responsible for performing functions
subject to the HMR with respect to that particular package.
Transportation of a hazardous material in commerce includes the
following:
(1) Movement. Movement of a hazardous material by rail car,
aircraft, motor vehicle, or vessel (except as delegated by Department
of Homeland Security Delegation No. 0170 at 2(103)).
(2) Loading incidental to movement of a hazardous material. Loading
of packaged or containerized hazardous material onto a transport
vehicle, aircraft, or vessel for the purpose of transporting it,
including blocking and bracing a hazardous materials package in a
freight container or transport vehicle, and segregating a hazardous
materials package in a freight container or transport vehicle from
incompatible cargo, when performed by carrier personnel or in the
presence of carrier personnel. For a bulk packaging, loading incidental
to movement is filling the packaging with a hazardous material for the
purpose of transporting it when performed by carrier personnel or in
the presence of carrier personnel (except as delegated by Department of
Homeland Security Delegation No. 0170 at 2(103)), including
transloading.
(3) Unloading incidental to movement of a hazardous material.
Removing a package or containerized hazardous material from a transport
vehicle, aircraft, or vessel; or for a bulk packaging, emptying a
hazardous material from the bulk packaging after the hazardous material
has been delivered to the consignee when performed by carrier personnel
or in the presence of carrier personnel or, in the case of a private
motor carrier, while the driver of the motor vehicle from which the
hazardous material is being unloaded immediately after movement is
completed is present during the unloading operation. (Emptying a
hazardous material from a bulk packaging while the packaging is on
board a vessel is subject to separate regulations as delegated by
Department of Homeland Security Delegation No. 0170 at 2(103).)
Unloading incidental to movement includes transloading.
(4) Storage incidental to movement of a hazardous material. Storage
of a transport vehicle, freight container, or package containing a
hazardous material by any person between the time that a carrier takes
physical possession of the hazardous material for the purpose of
transporting it until the package containing the hazardous material has
been delivered to the destination indicated on a shipping document,
package marking, or other medium, or, in the case of a private motor
carrier, between the time that a motor vehicle driver takes physical
possession of the hazardous material for the purpose of transporting it
until the driver relinquishes possession of the package at its
destination and is no longer responsible for performing functions
subject to the HMR with respect to that particular package.
(i) Storage incidental to movement includes--
(A) Storage at the destination shown on a shipping document,
including storage at a transloading facility, provided the original
shipping documentation identifies the shipment as a through-shipment
and identifies the final destination or destinations of the hazardous
material; and
(B) A rail car containing a hazardous material that is stored on
track that does not meet the definition of ``private track or siding''
in Sec. 171.8, even if the car has been delivered to the destination
shown on the shipping document.
(ii) Storage incidental to movement does not include storage of a
hazardous material at its final destination as shown on a shipping
document.
* * * * *
(f) Requirements of state and local government agencies. (1) Under
49 U.S.C. 5125, a requirement of a state, political subdivision of a
state, or an Indian tribe is preempted, unless otherwise authorized by
another Federal statute or DOT issues a waiver of preemption, if--
(i) Complying with both the non-Federal requirement and Federal
hazardous materials transportation law, the regulations issued under
Federal hazardous material transportation law or a hazardous material
transportation security regulation or directive issued by the Secretary
of Homeland Security is not possible;
[[Page 20033]]
(ii) The non-Federal requirement, as applied or enforced, is an
obstacle to accomplishing and carrying out Federal hazardous materials
transportation law, the regulations issued under Federal hazardous
material transportation law, or a hazardous material transportation
security regulation or directive issued by the Secretary of Homeland
Security;
(iii) The non-Federal requirement is not substantively the same as
a provision of Federal hazardous materials transportation law, the
regulations issued under Federal hazardous material transportation law,
or a hazardous material transportation security regulation or directive
issued by the Secretary of Homeland Security with respect to--
(A) The designation, description, and classification of hazardous
material;
(B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(C) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
(D) The written notification, recording, and reporting of the
unintentional release of hazardous material; or
(E) The design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a package or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
(iv) A non-Federal designation, limitation or requirement on
highway routes over which hazardous material may or may not be
transported does not comply with the regulations in subparts C and D of
part 397 of this title; or
(v) A fee related to the transportation of a hazardous material is
not fair or is used for a purpose that is not related to transporting
hazardous material, including enforcement and planning, developing, and
maintaining a capability for emergency response.
(2) Subject to the limitations in paragraph (f)(1) of this section,
each facility at which functions regulated under the HMR are performed
may be subject to applicable laws and regulations of state and local
governments and Indian tribes.
(3) The procedures for DOT to make administrative determinations of
preemption are set forth in subpart E of part 397 of this title with
respect to non-Federal requirements on highway routing (paragraph
(f)(1)(iv) of this section) and in subpart C of part 107 of this
chapter with respect to all other non-Federal requirements.
(g) Penalties for noncompliance. Each person who knowingly violates
a requirement of Federal hazardous material transportation law, an
order issued under Federal hazardous material transportation law,
subchapter A of this chapter, or an exemption or approval issued under
subchapter A or C of this chapter is liable for a civil penalty of not
more than $32,500 and not less than $275 for each violation. (For a
violation that occurred after January 21, 1997, and before October 1,
2003, the maximum and minimum civil penalties are $27,500 and $250,
respectively.) When a violation is a continuing one and involves
transporting of hazardous materials or causing them to be transported
or shipped, each day of the violation constitutes a separate offense.
Federal hazardous material transportation law provides that each person
who knowingly violates a requirement in Sec. 171.2(l) of this
subchapter or willfully violates a provision of Federal hazardous
material transportation law or an order issued under Federal hazardous
material transportation law shall be fined under Title 18, United
States Code, or imprisoned for not more than 5 years, or both.
0
3. Beginning on page 61940, in Sec. 171.8, revise the definitions for
``pre-transportation function,'' ``storage incidental to movement,''
``transloading,'' and ``unloading incidental to movement'' to read as
follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Pre-transportation function means a function specified in the HMR
that is required to assure the safe transportation of a hazardous
material in commerce, including--
(1) Determining the hazard class of a hazardous material.
(2) Selecting a hazardous materials packaging.
(3) Filling a hazardous materials packaging, including a bulk
packaging.
(4) Securing a closure on a filled or partially filled hazardous
materials package or container or on a package or container containing
a residue of a hazardous material.
(5) Marking a package to indicate that it contains a hazardous
material.
(6) Labeling a package to indicate that it contains a hazardous
material.
(7) Preparing a shipping paper.
(8) Providing and maintaining emergency response information.
(9) Reviewing a shipping paper to verify compliance with the HMR or
international equivalents.
(10) For each person importing a hazardous material into the United
States, providing the shipper with timely and complete information as
to the HMR requirements that will apply to the transportation of the
material within the United States.
(11) Certifying that a hazardous material is in proper condition
for transportation in conformance with the requirements of the HMR.
(12) Loading, blocking, and bracing a hazardous materials package
in a freight container or transport vehicle.
(13) Segregating a hazardous materials package in a freight
container or transport vehicle from incompatible cargo.
(14) Selecting, providing, or affixing placards for a freight
container or transport vehicle to indicate that it contains a hazardous
material.
* * * * *
Storage incidental to movement means storage of a transport
vehicle, freight container, or package containing a hazardous material
by any person between the time that a carrier takes physical possession
of the hazardous material for the purpose of transporting it in
commerce until the package containing the hazardous material is
physically delivered to the destination indicated on a shipping
document, package marking, or other medium, or, in the case of a
private motor carrier, between the time that a motor vehicle driver
takes physical possession of the hazardous material for the purpose of
transporting it in commerce until the driver relinquishes possession of
the package at its destination and is no longer responsible for
performing functions subject to the HMR with respect to that particular
package.
(1) Storage incidental to movement includes--
(i) Storage at the destination shown on a shipping document,
including storage at a transloading facility, provided the shipping
documentation identifies the shipment as a through-shipment and
identifies the final destination or destinations of the hazardous
material; and
(ii) Rail cars containing hazardous materials that are stored on
track that does not meet the definition of ``private track or siding''
in Sec. 171.8, even if those cars have been delivered to the
destination shown on the shipping document.
(2) Storage incidental to movement does not include storage of a
hazardous material at its final destination as shown on a shipping
document.
* * * * *
Transloading means the transfer of a hazardous material by any
person from
[[Page 20034]]
one bulk packaging to another bulk packaging, from a bulk packaging to
a non-bulk packaging, or from a non-bulk packaging to a bulk packaging
for the purpose of continuing the movement of the hazardous material in
commerce.
* * * * *
Unloading incidental to movement means removing a packaged or
containerized hazardous material from a transport vehicle, aircraft, or
vessel, or for a bulk packaging, emptying a hazardous material from the
bulk packaging after the hazardous material has been delivered to the
consignee when performed by carrier personnel or in the presence of
carrier personnel or, in the case of a private motor carrier, while the
driver of the motor vehicle from which the hazardous material is being
unloaded immediately after movement is completed is present during the
unloading operation. (Emptying a hazardous material from a bulk
packaging while the packaging is on board a vessel is subject to
separate regulations as delegated by Department of Homeland Security
Delegation No. 0170.1 at 2(103).) Unloading incidental to movement
includes transloading.
* * * * *
PART 174--[CORRECTED]
0
4. On page 61941, in the last column, revise amendatory instruction 13
to read as follows:
13. In Sec. 174.67, paragraphs (a)(1) through (a)(3) are revised,
paragraph (a)(4) is redesignated as paragraph (a)(6), new paragraphs
(a)(4) and (a)(5) are added, paragraphs (i) and (j) are revised,
paragraphs (k), (l), (m), and (n) are redesignated as paragraphs (l),
(m), (n), and (o) respectively, and a new paragraph (k) is added, to
read as follows:
0
5. Beginning on page 61941, in the last column, in Sec. 174.67, add
introductory text, and revise paragraphs (a), (k)(1), and (k)(2) to
read as follows:
Sec. 174.67 Tank car unloading.
For transloading operations, the following rules must be observed:
(a) General requirements. (1) Unloading operations must be
performed by hazmat employees properly instructed in unloading
hazardous materials and made responsible for compliance with this
section.
(2) The unloader must apply the handbrake and block at least one
wheel to prevent movement in any direction. If multiple tank cars are
coupled together, sufficient hand brakes must be set and wheels blocked
to prevent movement in both directions.
(3) The unloader must secure access to the track to prevent entry
by other rail equipment, including motorized service vehicles. This
requirement may be satisfied by lining each switch providing access to
the unloading area against movement and securing each switch with an
effective locking device, or by using derails, portable bumper blocks,
or other equipment that provides an equivalent level of safety.
(4) The unloader must place caution signs on the track or on the
tank cars to warn persons approaching the cars from the open end of the
track that a tank car is connected to unloading equipment. The caution
signs must be of metal or other durable material, rectangular, at least
30 cm (12 inches) high by 38 cm (15 inches) wide, and bear the word
``STOP''. The word ``STOP'' must appear in letters at least 10 cm (3.9
inches) high. The letters must be white on a blue background.
Additional wording, such as ``Tank Car Connected'' or ``Crew at Work''
may also appear.
(5) The transloading facility operator must maintain written safety
procedures (such as those it may already be required to maintain
pursuant to the Department of Labor's Occupational Safety and Health
Administration requirements in 29 CFR 1910.119 and 1910.120) in a
location where they are immediately available to hazmat employees
responsible for the transloading operation.
* * * * *
(k) * * *
(1) The facility operator must designate a hazmat employee
responsible for on-site monitoring of the transfer facility. The
designated hazmat employee must be made familiar with the nature and
properties of the product contained in the tank car; procedures to be
followed in the event of an emergency; and, in the event of an
emergency, have the ability and authority to take responsible actions.
(2) When a signaling system is used in accordance with paragraph
(i) of this section, the system must be capable of alerting the
designated hazmat employee in the event of an emergency and providing
immediate notification of any monitoring system malfunction. If the
monitoring system does not have self-monitoring capability, the
designated hazmat employee must check the monitoring system hourly for
proper operation.
* * * * *
Issued in Washington, DC, on April 7, 2005, under authority
delegated in 49 CFR part 1.
Stacey L. Gerard,
Acting Assistant Administrator/Chief Safety Officer.
[FR Doc. 05-7394 Filed 4-14-05; 8:45 am]
BILLING CODE 4910-60-P